If I don't want to patent something, what can I do to ensure the patent office doesn't unintentionally grant the patent to someone else?

Question

Say that I have created a hypothetical new invention. I would like for it to be used by as many people as possible without restrictions, so I deliberately choose not to pursue a patent on it.

As described in the answers to What if I don't patent my invention?, someone else can patent my invention unless the US Patent Office is aware that there is prior art, established by me producing and selling my invention. The trouble is, I can't necessarily guarantee that they will become aware of my prior art if I'm not particularly well-known.

What can be done to ensure that the patent office knows about my prior work (which I deliberately choose not to patent) and therefore doesn't unintentionally grant a patent to someone else?

Answer 1

There is a history of "giving away patents", which allows the original grantor to foster innovation instead of stifle it. Here are some examples:

• Sealand Industries - ISO Shipping Container
  • Patented the standard shipping container, then gave away the patent royalty free, allowing a revolution in ocean going shipping. Annually it is estimated that $440 billion are shipped through these containers.
• Tesla - 200+ patents
  • Elon Musk announced that the company "will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.".
• Toyota - Hydrogen Fuel Cell Patents
  • Released 5,680 patents related to hydrogen fuel cells
  • Toyota also released a lot of patents related to development of the Prius

The grant of a patent provides the ability for the grantor to pursue infringement lawsuits against companies or individuals, but it does not obligate them to do so. You can give away your patent, open it up to broad licensing, or just openly state that you will not enforce any action related to the lawsuit similar to how Tesla did it.

Answer 2

Producing or selling the invention are not the only ways to establish prior art. A simple publication detailing the invention would also suffice, from a strictly legal perspective (the publication qualifies as prior art under 35 USC 102).

It is possible that the USPTO (specifically, the Examiner responsible for finding prior art to reject another application) will not be aware of the publication, and in this regard a generic publication is typically worse than a US Patent Application. It is possible to for a third party to submit prior art relevant to a pending application, but doing so would require you to be aware that there was a relevant application pending (which might not even be possible, if the application was allowed before the 18 month publication date).

However, as long as you have evidence of the date the publication was made, you could rest assured that any patent issued on the invention would be easily invalidated (assuming the patent application was submitted after your publication date). Then, if the patent owner threatened to sue you for infringement, you could show them the publication and they would likely drop the issue.

There are also options to go through the USPTO to invalidate an issued patent, such as IPRs. However, these proceedings, while not as costly as patent litigation in court, can still be quite costly and complex.

Answer 3

Publish Your Invention

In theory, any reasonably-findable publication should work just as well as actually getting a patent in terms of establishing prior art to prevent the issuance of another patent on the invention.

Practice, however, is not always ideal. Judging from my experience patenting inventions, the patent examiners aren't always the best at finding relevant prior art and, even when they do, they don't always understand everything they're reading, regardless of how the prior art may have been published. At least in my experience, they also do tend to search the patent database more than other public publications.

If another patent does go into force on your invention, though, the only way for its owner to do anything with it is to sue someone. At this point, showing them that you have published prior art is likely to end any such enforcement attempt.

Check the USPTO Patent Application Database Routinely

Once you've published your invention (whether as a patent or not,) if you really want to be sure no other patent issues for your invention, the best way to do that is probably to periodically perform patent application searches yourself. USPTO's website allows you to search patent applications both by various metadata fields and by full-text.

Additionally, you can register for notifications when patent applications in areas of interest to you are filed. This may also help in identifying any attempts by someone else to patent your invention.

If your searches were to turn up a patent application that was attempting to patent your invention, you can submit a Third-Party Preissuance Submission to USPTO with the application number and your publications that demonstrate prior art. Depending on the number of documents you're submitting, though, this may incur a fee.